2019 (1) TMI 1231 - AT - Service Tax

GTA Service - proprietary concern or partnership firm - it was alleged that appellants are required to discharge service tax liability in respect of services from GTA as they were a partnership firm - Held that - While there is an allegation that appellants are a partnership firm no cognizance has been accorded to the proof adduced by them. Ld. Consultant has also submitted that even the registration certificate has been issued to the assessee as a proprietary concern - the appellant is not required to discharge tax liability under GTA. Reliance placed in the case of ANDAL MOTORS VERSUS COMMISSIONER OF CENTRAL EXCISE, SALEM 2017 (9) TMI 1328 - CESTAT CHENNAI , where in a similar situation, it was held that Being a proprietary concern, the appellant as a consignee of GTA services will not fall under the category of corporation, society or cooperative society. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Alleged non-payment of service tax liability by the appellants in respect of freight charges.
2. Dispute regarding the nature of the appellant's concern - partnership firm or proprietary concern.
3. Interpretation of Rule 2(1)(d)(v) of Service Tax Rules, 1994 in relation to the tax liability of the appellant.

Analysis:
1. The case involved proceedings against the appellants for alleged non-payment of service tax liability in relation to freight charges paid. The original authority and Commissioner (Appeals) upheld the demand, which was contested by the appellant.

2. The appellant argued that they were a proprietary concern, not a partnership firm as alleged. The appellant submitted proof of being a proprietary concern, which was not considered by the Commissioner (Appeals). The Tribunal found merit in the appellant's submission, noting that even the registration certificate was issued only as a proprietary concern.

3. The Tribunal analyzed Rule 2(1)(d)(v) of Service Tax Rules, 1994, which specifies the entities liable to pay service tax in relation to goods transport agency services. The Tribunal referred to a previous decision and highlighted that the appellant, being a proprietary concern, did not fall under the categories such as corporation, society, cooperative society, or partnership firm listed in the rule. The Tribunal concluded that the appellant was not liable to discharge tax liability under GTA based on the interpretation of the rule.

4. The Tribunal emphasized that mere admission of liability by the appellant, without a legal basis, was insufficient to confirm tax liability. The lower appellate authority failed to address this aspect. The Tribunal clarified that the appellant's registration under Central Sales Tax Act and Tamil Nadu General Sales Tax Act did not make them a body corporate. The registration was issued only to the proprietor, not to a non-existent entity like a "Proprietary Limited Company."

5. Ultimately, the Tribunal set aside the impugned order, allowing the appeal with consequential benefits, if any, as per the law. The decision was based on the appellant's status as a proprietary concern and the interpretation of Rule 2(1)(d)(v) of Service Tax Rules, 1994.